San Benito High School District (PERB 1076E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN BENITO
CHAPTER 	173,
Charging 	Party,
v.
SAN BENITO HIGH SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-1691
PERB Decision No. 	1076
December 	16, 	1994
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Appearances; 	California 	School 	Employees 	Association by Burnette
Murphy, 	Representative, 	for California School 	Employees
Association and its 	San Benito Chapter 173; 	Breon, 	O'Donnell,
Miller, 	Brown & Dannis by Brant T. 	Lee, 	Attorney, 	for San Benito
High 	School 	District.
Before Caffrey, 	Carlyle and Garcia, 	Members.
DECISION AND 	ORDER
CARLYLE, 	Member: 	This 	case 	is before the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	of 	a Board agent's 	dismissal
(attached) 	of 	an unfair practice 	charge 	filed by the 	California
School 	Employees Association and 	its 	San Benito 	Chapter 	173
(Association). 	The Board agent 	found that 	the 	charge alleging
that 	the 	San Benito High School 	District 	(District) 	unilaterally
changed 	the 	duties 	of 	a 	campus 	supervisor did not 	state 	a prima
facie case in violation of section 3543.5(a), 	(b), 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).1
EERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:

The 	Board has 	reviewed 	the 	warning 	and 	the 	dismissal
letters, 	the original and amended charges, 	the Association's
appeal 	and the District's 	response 	thereto. 	The Board 	finds 	the
Board agent's 	dismissal 	to be 	free 	of 	prejudicial 	error and
adopts 	it 	as 	the decision of 	the Board itself.
The unfair practice 	charge 	in Case No. 	SF-CE-1691 	is 	hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Caffrey and Garcia 	joined 	in 	this 	Decision.
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet 	and negotiate 	in
good 	faith with an 	exclusive 	representative.
22

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
May 31, 	1994
Bernette 	Murphy
California 	School 	Employees 	Association
P.O. 	Box 640
San Jose, 	California 	95106
Re: 	DISMISSAL 	OF UNFAIR PRACTICE 	CHARGE/REFUSAL 	TO 	ISSUE
COMPLAINT
California 	School 	Employees 	Association and 	its 	Chapter 	#171
v. 	San Benito High School 	District
Unfair Practice Charge No. 	SF-CE-1691
Dear Ms. 	Murphy:
The above-referenced unfair practice 	charge, 	filed on 	\
February 17, 	and amended on May 27, 	1994, 	unilaterally changed
the job duties 	of 	the Campus 	Supervisor, 	engaged 	in bypassing of
the 	California School 	Employees Association and 	its 	Chapter #171
(Association) 	and undermined the Association. 	This 	conduct 	is
alleged to violate Government Code section 3543.5(a), 	(b), 	and
(c) 	of the Educational Employment Relations Act 	(EERA).
I 	indicated to you, 	in my attached letter dated May 11, 	1994,
that 	the 	above-referenced 	charge 	did not 	state a prima 	facie
case. 	You were advised that, 	if 	there were any factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you should amend 	the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state a prima 	facie 	case 	or withdrew it prior 	to May
19, 	1994, 	the charge would be dismissed. 	I granted you a brief
extension of 	time within which 	to 	file 	an amended 	charge.
On May 27, 	1994, 	you filed an amended charge. 	The only new
allegation in the 	charge 	is 	that 	the duty of 	"identifying" 	weeds
was 	one 	exclusively assigned 	to 	the 	classification of 	Grounds
Worker/Custodian 	and 	that 	the 	District 	unilaterally 	transferred
this 	duty to 	the 	classification of 	Campus 	Supervisor. 	This bare
allegation 	is 	insufficient 	to demonstrate 	a negotiable 	change 	in
working 	conditions 	in light 	the 	other allegations 	in the 	charge.
As 	it appears 	from the 	facts presently alleged in 	the 	charge, 	for
Grounds Worker/Custodians, 	"identifying weeds" 	is a task
integrated with 	the 	specifically assigned duties 	of 	"hoeing
weeds" and "spraying weeds" 	(i.e., 	eradicating weeds). 	This is
not 	the 	type 	of 	"identification" 	duty 	that 	appears 	to have been
alleged 	in the 	charge with respect 	to Campus 	Supervisors. 	For
example, 	Superintendent George Hearn announced to Campus
Supervisors 	that 	he was 	"developing a 	form for 	the 	identification
and location of weeds." 	Vice 	Principal 	Tim Shelito described 	the

Dismissal, etc.
SF-CE-1691
May 31, 	1994
Page 2
work as 	"reporting of weeds 	to 	their supervisor." 	The 	duty
assigned 	to 	Campus 	Supervisors 	appears 	to 	have been one 	which was
newly 	created and 	designed merely 	to 	aid 	the 	Grounds
Worker/Custodians 	in 	the 	regular performance 	of 	their weed
eradication duties. 	(Alum Rock Union Elementary School 	District
(1983) 	PERB Dec. 	No. 	322 	[managerial prerogative to assign
function not 	previously performed].) 	Neither 	the 	charge 	nor 	the
amended 	charge 	allege 	that 	Grounds 	Worker/Custodians 	had
previously performed this 	type 	of 	weed 	identification 	(i.e.,
noting 	the 	location of 	weeds 	on a 	form and 	reporting 	it 	to 	their
supervisor) 	before eradicating them.
Moreover, 	even though it may be argued that 	the District
technically transferred a duty to 	the Campus 	Supervisor, 	the
transfer 	is 	not 	shown to be 	significant 	enough to make 	the matter
negotiable. 	(Alum Rock Union Elementary School District. 	supra-·,
PERB Dec. 	No. 	32------------·2 	[significant change in an employee's actua- l 	job
duties, 	as 	contrasted with wholesale 	transfer of 	duties 	from one
classification to another]; 	Rio Hondo Community College District
(1982) 	PERB Dec. 	No. 	279; Mt. 	San Antonio Community College
District 	(1983) 	PERB Dec. 	No. 	297.) 	It also does not appear that
the mediatory 	influence 	of 	collective bargaining 	is 	compelled 	for
this 	type 	of 	decision. 	(Anaheim Union High School 	District
(1981) 	PERB Dec. No. 	177.)
Therefore, 	I am dismissing 	the 	charge based on the 	facts 	and
reasons 	stated above and those 	contained 	in my May 	11, 	1994
letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board itself within twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original 	and five copies
of 	such appeal must 	be actually received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to 	issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
(

Dismissal, etc.
SF-CE-1691
May 31, 	199	' ' 4
Page 3
copies 	of 	a 	statement 	in opposition within 	twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code of
Regs., 	tit. 8, 	sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"servedI -- "
upon all 	parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany each 	copy of 	a 	document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file a document
with 	the 	Board 	itself, 	must be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if known, 	the
position 	of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)
Final 	Date
If no appeal 	is 	filed within the specified time 	limits, 	the
dismissal 	will 	become 	final when the 	time 	limits 	have 	expired	-. . 	.
Sincerely,
ROBERT 	THOMPSON
Deputy 	General 	Counsel
By
DONN GINOZA
Regional 	Attorney
Attachment
cc: 	Brant T. 	Lee
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STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
May 11, 	1994
Bernette 	Murphy
California 	School 	Employees 	Association
P.O. 	Box 640
San Jose, 	California 	95106
Re: 	WARNING LETTER
California 	School 	Employees Association and 	its 	Chapter #171
v. 	San Benito High School 	District
Unfair Practice Charge No. 	SF-CE-1691
Dear Ms. 	Murphy:
The above-referenced unfair practice 	charge, 	filed on 	February
17, 	1994, 	unilaterally changed the job duties of 	the Campus
Supervisor, 	engaged in bypassing of 	the 	California School
Employees Association and 	its 	Chapter #171 	(Association) 	and
undermined the Association. 	This 	conduct 	is alleged to violate
Government Code section 3543.5(a), 	(b), 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).
Investigation of 	the 	charge 	revealed 	the 	following. 	The
Association 	is 	the 	exclusive 	representative 	of a bargaining unit
composed of 	classified employees 	in the District. 	There 	exists a
classification known as 	Campus 	Supervisor. 	The 	job description
defines 	the position in the 	following 	terms: 	"Under general
supervision, 	to assist 	in making 	the 	campus 	secure and to do
related work as 	required." 	The 	job descriptions 	lists 	examples
of 	duties 	as 	follows: 	"Assist 	in crossing 	students 	to and 	from
East Campus; 	cleans 	campus after tardy bells, 	checks students out
on campus 	for valid passes; 	reports 	all 	student managment
infractions; 	checks restrooms; 	reports all 	loiterers and/or non-
students; 	supervises 	In House Suspension/Pre Expulsion Center;
transports 	students 	to 	their homes when requested; 	and may patrol
off 	campus 	in school vehicle." 	The 	job description does 	not make
any specific 	reference 	to 	the 	identification or control 	of weeds.
The 	classification of Groundsworker/Custodian 	lists 	as 	duties 	the
raking of leaves, 	hoeing of weeds, 	and spraying of weeds.
On or about August 30, 	1993, 	Gregory Hearn, 	Superintendent,
attended a meeting 	of 	Campus 	Supervisors 	at which 	time 	he
expressed his 	concern of 	weeds 	on 	campus 	and his 	desire 	to
address 	the 	problem by developing 	a 	form 	for 	the 	identification
and the 	location of weeds. 	He 	indicated 	that 	Campus 	Supervisors
were 	to 	identify locations 	of weeds 	on the 	campus, 	note 	them on a
form he provided, 	and submit 	the 	forms 	directly to his 	office 	or

Warning 	Letter
SF-CE-1691
May 11, 	1994
Page 	2
to 	their 	immediate 	supervisor. 	The 	forms were distributed on or
about September 13, 	1992.
On or about September 30, 	1993, 	Bernette Murphy, 	Labor Relations
Representative 	of 	the Association, 	complained to Hearn during an
Employer/Employee 	Relations 	Committee meeting 	about 	the
unilateral 	implementation 	of 	the 	duty of 	weed 	identification 	for
Campus 	Supervisors. 	The 	charge alleges 	that Hearn 	"exploded."
He 	turned away 	from Murphy and directly 	to Diane 	Fletcher, 	a
Campus 	Supervisor and appointee 	to 	the 	Committee, 	and 	"in an
accusatory and 	threatening 	tone 	insisted 	that 	she 	account 	for any
burden 	the 	additional 	duty had 	created." 	"Hearn's 	tone,
demeanor, 	and actions were 	coercive 	and 	intimidating." 	The
Association 	contends 	that 	Hearn's 	refusal 	to 	address Murphy
denied 	employees 	their 	right 	to be 	represented by 	the
Association.
In a letter dated September 30, 	1993, 	the Association demanded
that 	the District 	cease 	and desist 	the 	implementation 	of 	the duty
of 	weed 	identification and 	to meet 	and negotiate 	over 	the matter.
On or about October 1, 	1993, 	Tim Shelito, 	Vice Principal, 	met
with 	Campus 	Supervisors 	and discussed 	the 	need 	to 	identify weeds
and use 	the 	form. 	In addition, 	he 	falsely represented that 	the
District 	and 	the Association were negotiating 	the 	issue. 	On or
about 	October 	11, 	Shelito again met with Campus Supervisors and
falsely asserted 	that 	the 	subject 	was 	being negotiated. 	The
charge 	alleges 	that 	"Shelito proceeded 	to 	negotiate 	directly with
the 	Campus 	Supervisors 	by arguing 	that 	their 	reporting 	of weeds
to 	their 	supervisor would not be 	telling 	on 	fellow unit members."
He 	also 	advanced 	to 	them the proposal 	that 	an 	in-service 	training
could be 	arranged 	to assist 	in the 	identifying of weeds. 	Shelito
also 	told 	the 	employees 	that 	they 	could be 	replaced 	if 	they did
not 	perform the 	duty of 	identifying weeds.
On or about 	October 	11, 	the District 	rejected the Association's
demand 	to bargaining 	asserting 	that 	the 	matter was 	not
negotiable.
Based on the 	facts 	stated above, 	the 	charge as presently written
fails 	to 	state 	a prima 	facie violation 	of 	the 	EERA for 	the
reasons 	that 	follow.
The principal 	issue 	in the 	case 	is whether the 	Campus
Supervisors' 	new job duty of 	identifying weeds was within the
scope 	of 	representation and 	therefore negotiable. 	In Rio Hondo
Community College District 	(1982) 	PERB Dec. 	No. 	279, 	the Public
Employment 	Relations Board 	(PERB) 	held 	that 	there 	is 	no duty to
J

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Warning 	Letter
SF-CE-1691
May 11, 	1994
Page 3
negotiate 	where 	a 	new assignment 	is 	reasonably 	comprehended
within 	the 	scope 	of 	existing 	job duties.
The Association 	contends 	that 	the 	job description 	of 	Campus
Supervisor 	relates 	to 	"maintaining 	campus 	order by means 	of
controlling 	student 	behavior," 	does 	not 	include 	any provision
requiring 	that 	employees 	pick up 	trash, 	and does 	not 	include any
duties pertaining 	to 	the 	identification or 	control 	of 	weeds.
The 	job 	description describes 	a 	five 	hour per day position 	in
which 	the 	Campus 	Supervisor apparently begins 	the 	work day
assisting 	students 	in arriving 	on 	campus 	safely and 	subsequently
patrols 	the 	campus 	to control 	the movement 	of 	students 	and
identify loiterers. 	However, 	the job description also
specifically provides 	that 	a 	Campus 	Supervisor 	"cleans 	[the]
campus after tardy bells" 	and 	"checks 	restrooms." 	Therefore, 	it
does 	not 	appear to 	confine duties 	to 	those 	related to
"controlling 	student 	behavior." 	The 	job 	description also
provides 	that as part of 	the duty to make 	the 	campus 	secure, 	the
District 	may assign 	other 	"related work 	as 	required." 	Although
the 	Groundsworker/Custodian position does 	appear 	to 	require 	the
eradication of weeds, 	and the 	identification of weeds would
clearly be a 	related duty, 	that 	job description does 	not mutually
exclude 	the 	duty 	of 	weed 	identification 	from the 	job 	description
of 	the 	Campus 	Supervisor.
The Association was 	afforded an 	opportunity 	to provide 	further
evidence 	and/or argument 	as 	to why 	the 	identification of 	weeds
was 	not 	reasonably 	comprehended within 	the 	scope 	of 	existing 	job
duties, 	but 	it has not responded.
It 	is 	concluded 	that 	the 	charge 	fails 	to 	contain sufficient
evidence 	to 	conclude 	that 	the 	duty of 	identifying 	the 	location of
weeds 	on 	campus 	is 	not 	reasonably 	comprehended within 	the 	scope
of 	existing 	job duties 	for 	the position of 	Campus 	Supervisor.
Therefore, 	it has not been shown that 	the subject 	is negotiable.
The 	District's 	subsequent 	actions 	involving a 	refusal 	to 	respond
to 	the Association's 	demand to bargain, 	refusal 	to address
Association representative Murphy at 	the September 30, 	1993
meeting, 	Vice 	Principal's 	Shelito's misrepresentations 	about 	the
matter being under negotiation, 	his 	alleged bypassing based 	on
attempting 	to 	convince 	Campus 	Supervisors 	that 	they would not 	be
telling 	on 	fellow 	employees 	and proposing an 	in-service, 	and his
threatening 	them with loss 	of 	their jobs 	if 	they did not 	perform
the 	new duty also 	fail 	to 	state prima 	facie violations 	because
the District 	was 	within 	its 	rights 	to assign the new duty.
(

Warning 	Letter
SF-CE-1691
May 11, 	1994
Page 	4
For these 	reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there are 	any 	factual 	inaccuracies
in 	this 	letter 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared 	on a 	standard 	PERB unfair
practice 	charge 	form, 	clearly 	labeled 	First 	Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served 	on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I 	do not 	receive an
amended charge 	or withdrawal 	from you before May 19. 	1994. 	I
shall 	dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	557-1350.
Sincerely,
DONN GINOZA
Regional 	Attorney
I